United States District Court, D. Massachusetts
LINCOLN-SUDBURY REGIONAL SCHOOL DISTRICT, Plaintiff and Counterclaim-Defendant,
MR. and MRS. W., Defendants and Counterclaim-Plaintiffs, and WALLIS W., Counterclaim-Plaintiff,
BUREAU OF SPECIAL EDUCATION APPEALS, Counterclaim-Defendant.
MEMORANDUM AND ORDER ON CROSS-MOTIONS FOR SUMMARY
JUDGMENT AND DEFENDANTS' MOTION TO REVERSE THE DECISION
OF THE BUREAU OF SPECIAL EDUCATION APPEALS
Dennis Saylor, United States District Judge
lawsuit arises out of an administrative decision by the
Massachusetts Bureau of Special Education Appeals
(“BSEA”) in a dispute between Lincoln-Sudbury
Regional School District and Mr. and Mrs. W., parents of a
minor child, Wallis.
September 2012, Wallis was a sophomore at Lincoln-Sudbury
High School. The school is regarded by many as one of the
best public high schools in Massachusetts, and serves two
relatively affluent towns.
September 30, 2012, Wallis was injured during a field-hockey
practice and suffered a concussion. She was seen by her
doctor a few days later, and at a follow-up appointment not
long after that. She missed about two weeks of school, and on
her doctor's orders, her activities were limited for
another two weeks or so after that. The school was aware of
the doctor's orders, and complied with them in all
respects; she was permitted to make up her schoolwork, and
received a variety of other accommodations to help her catch
was, before and after the concussion, a good student. Her
grades were largely unchanged after the concussion, and she
was almost entirely symptom-free after she returned.
was taking a rigorous schedule of classes, including the most
rigorous and intensive mathematics class offered by the
school. In her sophomore year, she struggled somewhat in that
class. Eventually-in May 2013, eight months after the
concussion-her math teacher recommended that she take an
advanced, but less-rigorous, course her junior year.
recommendation precipitated a lengthy dispute between
Lincoln-Sudbury and Wallis's parents, culminating in this
lawsuit. Her parents began to claim that Wallis was a
disabled child, and accused the school of failing to comply
with their legal obligations to provide her with a special
education. In September 2013, they removed her from the
Lincoln-Sudbury schools and enrolled her at Lawrence Academy,
a private school. Wallis is now an honors student at George
parents brought a proceeding before the BSEA seeking, among
other things, reimbursement for the costs of Wallis's
private education and tutoring. The hearing was contentious;
among other things, the parents accused the school of making
false statements and engaging in intimidating and coercive
behavior. The BSEA Hearing Officer, however, found that
Lincoln-Sudbury had in fact complied with the requirements of
the law and that the parents were not entitled to
reimbursement. She further found that the parents' claim
was “patently frivolous” and brought for
“an improper purpose.” After the decision,
Lincoln-Sudbury filed suit to recover its attorneys' fees
and costs, and the parents counterclaimed to reverse the
hearing officer's decision. The parties have cross-moved
for summary judgment on the issue of attorneys' fees. In
addition, defendants have moved for summary judgment on their
counterclaim appealing the BSEA's decision.
reasons stated below, plaintiff's motion for summary
judgment will be granted, and defendants' motions for
summary judgment will be denied.
Individuals with Disabilities Education Act
(“IDEA”) conditions the provision of federal
funds to public schools on compliance with a requirement to
provide all disabled children with a “free appropriate
public education” (“FAPE”). Roland M.
v. Concord Sch. Comm., 910 F.2d 983, 987 (1st Cir. 1990)
(quoting 20 U.S.C. §§ 1400(c), 1414(b)(2)(A),
1416). “Substantively, the ‘free appropriate
public education' ordained by the Act requires
participating states to provide, at public expense,
instruction and support services sufficient ‘to permit
the child to benefit educationally from that
instruction.'” Id. (quoting Bd. of
Educ. v. Rowley, 458 U.S. 176, 203 (1982)).
with a Disability”
determinations regarding eligibility for special education
are . . . governed . . . by the definition of a ‘child
with a disability.'” Doe v. Cape Elizabeth Sch.
Dist., 832 F.3d 69, 73 (1st Cir. 2016) (citing 20 U.S.C.
§ 1401(3)(A)). A disabled child is one (1) with
intellectual, physical, or specific learning disabilities (2)
who needs special education services. See 20 U.S.C.
§ 1401(3)(A). Determination of eligibility for special
education thus follows a two-step approach. “The first
prong determines the existence of a disorder . . . [and t]he
second prong identifies whether the child with a qualifying
disorder ‘needs' special education and related
services as a result of that disorder.” Doe,
832 F.3d at 73. Only after a disability is determined to
exist does “the eligibility inquiry ask[ ] whether the
child also ‘needs special education and related
services' ‘by reason [of]' her
disability.” Id. at 74 (quoting 20 U.S.C.
promulgated by the U.S. Department of Education have
enumerated certain qualifying disabilities. As relevant here,
included among that list of disabilities is “traumatic
brain injury, ” which is defined as follows:
[A]n acquired injury to the brain caused by an external
physical force, resulting in total or partial functional
disability or psychosocial impairment, or both, that
adversely affects a child's educational performance.
Traumatic brain injury applies to open or closed head
injuries resulting in impairments in one or more areas, such
as cognition; language; memory; attention; reasoning;
abstract thinking; judgment; problem-solving; sensory,
perceptual, and motor abilities; psychosocial behavior;
physical functions; information processing; and speech.
Traumatic brain injury does not apply to brain injuries that
are congenital or degenerative, or to brain injuries induced
by birth trauma.
34 C.F.R. 300.8(c)(12).
“Child Find” Provision
the IDEA's “Child Find” provision, states are
required to “have in effect policies and
procedures” to ensure that students with disabilities
who need special education services are identified and
evaluated. 20 U.S.C. § 1412(a)(3)(A); 34 C.F.R. 300.111.
Once a disabled child needing special education is
identified, her school district must “evaluate the
child's specific needs and develop an
‘individualized educational program.'”
Jamie S. v. Milwaukee Pub. Schs., 668 F.3d 481, 486
(7th Cir. 2012). The Massachusetts version of the Child Find
law is set forth in its special-education statute, Mass. Gen.
Laws ch. 71B, and the accompanying regulations.
Individualized Education Programs
individualized education program (“IEP”) is the
IDEA's primary means for assuring the provision of a FAPE
to disabled children. “Under the IDEA, parents and
educators must jointly develop and sign an IEP.”
CBDE Pub. Schools v. Mass. Bureau of Special Educ.
Appeals, 2012 WL 4482296, at *5 (D. Mass. Sept. 27,
2012). IEPs are written statements detailing an
individualized plan for disabled children. At a minimum,
“[e]ach IEP must include an assessment of the
child's current educational performance, must articulate
measurable educational goals, and must specify the nature of
the special services that the school will provide.”
Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 53
(2005); see also Roland M., 910 F.2d at 987.
Reimbursement for Tuition
school fails to provide a FAPE in a timely manner, the
parents of a disabled child have the right to seek
reimbursement, where appropriate, for private-school tuition.
See Burlington v. Dep't of Educ., 471 U.S. 359,
370 (1985); C.G. v. Five Town Cmty. Sch. Dist., 513
F.3d 279, 284-85 (1st Cir. 2008). However, parents who
unilaterally change their child's placement without the
consent of state or local school officials “do so at
their own financial risk.” Id. at 374. Such
parents are entitled to reimbursement “only if
a federal court concludes both that the public placement
violated IDEA and that the private school placement was
proper under the Act.” Florence Cty. Sch. Dist.
Four v. Carter, 510 U.S. 7, 15 (1993) (emphasis in
IDEA Administrative Procedure
dispute arises between parents and a school district
concerning the application of IDEA to a particular child, the
statute requires the state to convene an impartial hearing.
20 U.S.C. § 1415(f)(1)(A). In Massachusetts, those
hearings are conducted by the BSEA. See Mass. Gen.
Laws ch. 71B, § 3; 603 C.M.R. 28.08(5); see also
Roland M., 910 F.2d at 988.
Massachusetts law, the BSEA has jurisdiction to hear disputes
between and among parents, school districts, private schools
and state agencies concerning: (i) any matter relating to the
identification, evaluation, education program or educational
placement of a child with a disability or the provision of a
free and appropriate public education to the child arising
under this chapter and regulations promulgated hereunder or
under the Individuals with Disabilities Act, 20 U.S.C. §
1400 et seq., and its regulations; or (ii) a
student's rights under Section 504 of the Rehabilitation
Act of 1973, 29 U.S.C. § 794, and its regulations.
Mass. Gen. Laws. Ch. 71B, § 2A(a). The BSEA's
administrative decision is reviewable in either state or
federal court. See 20 U.S.C. § 1415(i)(2)(A),
(i)(2)(C)(iii); see also Roland M., 910 F.2d at 988.
However, before such an action may be brought, the party
seeking review must exhaust all administrative procedures
under the IDEA. 20 U.S.C. § 1415(1).
Rehabilitation Act of 1973
504 of the Rehabilitation Act requires that “no . . .
individual with a disability in the United States . . .
shall, solely by reason of her or his disability, be excluded
from the participation in . . . any program or activity
receiving Federal financial assistance.” 29 U.S.C.
§ 794(a); see also 34 C.F.R. 104.4. As applied
to public education, Section 504 requires that disabled
children have equal access to educational opportunities that
non-disabled children enjoy. Id. In addition, under
Section 504, if parents dispute the school district's
identification, evaluation, or placement of disabled
students, an impartial hearing must be held. 34 C.F.R.
504 is not coextensive with the IDEA. “While the IDEA
focuses on the provision of appropriate public education to
disabled children, the Rehabilitation Act of 1973 more
broadly addresses the provision of state services to disabled
individuals.” Mark H. v. Lemahieu, 513 F.3d
922, 929 (9th Cir. 2008). Nevertheless, public schools
receiving federal funds must still “provide a free
appropriate public education to each qualified handicapped
person” under Section 504. Id. A handicapped
person is one with a “physical or mental impairment
which substantially limits one or more major life
activities.” 34 C.F.R. 104.3(j)(1).
phrase “physical or mental impairment” in turn
(A) any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more of
the following body systems: neurological; musculoskeletal;
special sense organs; respiratory, including speech organs;
cardiovascular; reproductive, digestive, genito urinary;
hemic and lymphatic; skin; and endocrine; or (B) any mental
or psychological disorder, such as mental retardation,
organic brain syndrome, emotional or mental illness, and
specific learning disabilities.
34 C.F.R. 104.3(j)(2)(i). “Major life activities”
are “functions such as caring for one's self,
performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.” 34 C.F.R.
104.3(j)(2)(ii). Neither the Rehabilitation Act nor
regulations define the phrase “substantially limits,
” which requires an individualized case-by-case
analysis. See Schroeder v. Triton Reg'l Sch.
Dist., 2008 WL 8170074, at *7 (D. Mass. Feb. 21, 2008).
Massachusetts Special-Education Statute
has a special-education law, Mass. Gen. Laws ch. 71B, that
works in tandem with the federal IDEA. The statute charges
school districts to “meet [every] child's needs
within the regular education program” by modifying the
curriculum or teaching strategies or using available support
services when necessary. Mass. Gen. Laws. Ch. 71B, § 2.
However, when that is not possible, the child is to be
referred for evaluation to determine whether a disability
exists and special education is required. Id. §
A “school age child with a disability” is defined
by statute as
a school age child in a public or non-public school setting
who, because of a disability consisting of a developmental
delay or any intellectual, sensory, neurological, emotional,
communication, physical, specific learning or health
impairment or combination thereof, is unable to progress
effectively in regular education and requires special
education services . . . .
Id. § 1. Under the regulations promulgated by
the Massachusetts Department of Elementary and Secondary
Education, “disability” includes neurological and
physical impairment. 603 C.M.R. 28.02(7).
The Events of September and October 2012
Regional School District operates a regional high school that
serves the towns of Lincoln and Sudbury, Massachusetts. As of
September 2012, Wallis W. was a sophomore at Lincoln-Sudbury
was taking some of the most challenging classes available to
her. (A.R. 1366). Her courseload included advanced classes in
English, science, mathematics, history, and Spanish.
(Id.). She also played on the varsity field-hockey
September 30, 2012, Wallis was participating in a
field-hockey practice overseen by coach Vicky Caburian.
(Id.). During a drill, a teammate accidentally
thrust her stick into her mouth, causing a tooth to fall out.
(Id.; A.R 1457). Wallis was given emergency medical
care and placed on pain medication and antibiotics. (A.R.
October 3, 2012, Wallis was seen by her physician, Dr.
Aisling Gaughan, who diagnosed a concussion. (A.R. 1500-01).
Dr. Gaughan recommended “complete rest; no school or
media or reading or physical activity” for two weeks.
(Id.). Subsequently, Mr. and Mrs. W. wrote e-mails
to Lincoln-Sudbury staff relating the substance of Dr.
Gaughan's orders. (A.R. 1496-97). On October 5, 2012,
Mrs. W. also wrote an e-mail to Coach Caburian, stating
“[Dr. Gaughan] said that [Wallis] will be returning to
school part time and should have a step-by-step gradual ramp
up to get her caught up on homework projects and tasks she
has missed. She will coordinate further with you to develop a
plan [to return to field-hockey] when she returns.”
following week, on October 12, 2012, Dr. Gaughan saw Wallis
again. She noted that “[Wallis] feels much better, c/o
mild fatigue only.” (A.R. 1504). She recommended
excusing Wallis from gym and field-hockey games until October
29. (A.R. 1504-05). In addition, she excused her from make-up
class work and tests for at least two weeks, with the
possibility of excusing her from homework for a week if
conditions relapsed. (Id.). On October 14, 2012,
Mrs. W. relayed those instructions to Lincoln-Sudbury. (A.R.
1523). Gail Nozik, a school nurse at
Lincoln-Sudbury, acknowledged Dr. Gaughan's orders and
entered a medical alert in the school “Ipass”
system, which would alert Wallis's teachers to a relevant
health concern. (Tr. III 15).
prescribed period of inactivity ended in October 2012 without
incident. For the rest of the school year, Wallis did not
come to the school nurse's office, except for annual
vision and hearing screenings. (Tr. II 80). Neither Wallis
nor her parents submitted further medical instructions,
documents, or requests to the nurse's office concerning
her condition. (Tr. II 125). The nurse's office was
unaware of any symptoms that may have warranted a different
protocol. (Tr. II 87). In addition, the parents had no
contact with Yoshitaka Ando, the Lincoln-Sudbury athletic
trainer. (Tr. III 79).
record shows that Wallis did not visit Dr. Gaughan at any
time between October 12, 2012, and June 14, 2013. (A.R.
1466). It appears she had no medical care concerning her
concussion from any other provider during that period.
Wallis's Return to School
her injury, Wallis returned to school on October 15, 2012, to
participate in a field trip with her Advanced Placement U.S.
History class. (A.R. 1368). She subsequently met with J.K.
Park, her guidance counselor, to formulate a plan to help her
catch up in her classes. (Id.). At that meeting,
Park saw no observable post-concussion symptoms and believed
that Wallis had physically recovered and was emotionally
eager to return to class. (Tr. III 144-45). Around that time,
however, Wallis expressed to Park that she was fatigued. (Tr.
missed two more days of school in early November because of
the death of a close family member. (A.R. 1368). Because she
had missed so many days of school, her parents expressed
concerns about her academic performance to Park.
(Id.; Tr. III 148).
November 2012, Park organized a meeting with Wallis, her
parents, her teachers, and her housemaster, Sandra Crawford.
(Tr. IV 18-19; Tr. III 148). The purpose of the meeting,
which took place on November 29, was to discuss and to
develop accommodations for Wallis. (Tr. III 148). Handwritten
notes taken by Crawford during the meeting indicated that the
agreed-upon accommodations included extra tutoring from
staff, waiving of certain assignments and tests, extra time
for tests, and extension of deadlines for projects. (A.R.
American Literature, taught by Ann Kramer, Wallis was
“the leader of the pack” with “constantly
superior” grades. (A.R. 1535). Kramer waived a few
quizzes and was prepared to grant Wallis a significant
extension on a major paper, but no extension was necessary.
(Tr. III 46). Almost no accommodations were needed for the
course, as Kramer reported that she appeared to be the same
student behaviorally, emotionally, and academically. (A.R.
1369). Overall, she received an “A” for the fall
semester. (A.R. 1535).
Spanish 3, taught by Kim Schultz, Wallis had trouble catching
up with her classmates, and Schultz noted that she initially
looked “overwhelmed” when she returned to school.
(Tr. III 117). However, Schultz testified that she did not
complain about physical symptoms beyond “something
about headaches and not being able to complete a reading
assignment.” (Tr. III 127). Schultz did not count the
homework assignments she missed and suggested she enlist a
tutor, either privately or from the school's
peer-tutoring center. (A.R. 1536; Tr. III 129-30).
the November 2012 meeting, Schultz agreed to reduce
Wallis's homework and grant her additional time for tests
and quizzes. (A.R. 1536). Her grades dipped between first and
second quarter from “B” to “C, ” but
the following semester she consistently performed at the
“B” to “B-” level. (A.R. 2094).
According to Schultz, those grades were average in her class
that year and demonstrated that she was accessing the
curriculum and making effective progress. (Tr. III 128). She
did not seek any accommodations from Schultz in the second
semester of the school year. (A.R. 1536; Tr. III 128).
Schultz reported to Park on May 14, 2013, that Wallis
“seems a bit down” and “needs to ask for
help more [often].” (A.R. 2027). Wallis placed in the
78th percentile on the National Spanish Exam in spring 2013.
Advanced Placement U.S. History, taught by Joshua Gilman,
there was almost no change in Wallis's academic
performance. She was a consistent “B” student
during the academic year, outperforming most of her peers.
(A.R. 313). According to Gilman, he granted her an extension
for several essays, but she “neither asked nor was
given any concussion-related accommodations” after the
fall semester. (A.R. 1535). Gilman further testified that she
was keeping up with the class and understanding the content.
(Tr. IV 87). He stated that he was “all the more
impressed given the fact that she had to make up the work for
when she was out and simultaneously keep going with the
course itself.” (Id.).
was also a softball/baseball coach with training in
concussion management. (Tr. IV 73). After Wallis's return
to school in mid-October 2012, he did not observe any
post-concussion symptoms. (Tr. IV 74). Gilman saw no
behavioral or academic changes, and she never requested extra
help from him. (Id.; Tr. IV 83-84). Her parents
never contacted him about her injury or voiced any concerns
about her health or academic performance. (Tr. IV 87-88).
Wallis subsequently scored a 4 out of 5 on the Advanced
Placement U.S. History test in May 2013, which indicated that
she was “well qualified” for the college-level
equivalent course. (A.R. 1588). She also scored a 610 out of
800 on the U.S. History SAT Subject Test in June 2013. (A.R.
Accelerated Biology, taught by Peter Elenbaas, Wallis's
grades were relatively unchanged before and after the injury.
(A.R. 312). The class was the most rigorous
introductory biology course offered at Lincoln-Sudbury.
(Id.). She was granted extra time to make up work;
such extensions were consistent with what other students
received in Elenbaas's class after similarly long
absences. (Id.). She received grades in the
“C” range during the fall semester, although they
improved to a “B-” in the spring. (A.R. 2094).
Elenbaas did not recall Wallis or her parents ever suggesting
that she had a disability. (A.R. 313).
Intensive Algebra II, taught by Brandon Dorey, Wallis
consistently struggled. College-preparatory mathematics at
Lincoln-Sudbury is taught at three levels: Level II, which is
a typical college-preparation course; Level I, which is a
fast-paced course covering more advanced topics; and
Intensive, which is the fastest-paced and most-demanding
course available. (Tr. IV 119). After each academic year,
math teachers make recommendations for each student's
placement for the following year. (Tr. IV 153). However,
parents may override the teacher's recommendation by
filling out an “override” form, which is always
Wallis's return to class, Dorey waived one test and she
elected to not complete an optional homework binder. (A.R.
1535). For the next several months, she did not voice concern
to Dorey about any post-concussion symptoms or her grades.
(Tr. IV 172). During that period, she never asked for
additional help or other accommodations. Dorey recommended
that she see him for additional help during the sixth period,
when she had free time, but she never took advantage of that
opportunity. (A.R. 1535).
modified his grading scheme for Wallis by placing greater
weight on her midterm exam, which was administered in January
2013, and which was more than three months after the injury
occurred. (A.R. 1535). He testified that his normal grading
system “didn't make sense for [Wallis] because it
would have over- or under-emphasized certain assignments in
[the] grading software.” (Tr. IV 145). She did not seek
individual help from Dorey until the fourth quarter (during
the spring semester) and did not request additional support
for this class from other school staff. (Tr. IV 126). She
received a “C” for the fall semester. (A.R.
also took the Massachusetts Comprehensive Assessment System
(“MCAS”) test in June 2013. (A.R. 2041). She was
provided additional time for that test. (Id.). She
scored “Advanced” in all three categories:
English Language Arts, Mathematics, and Biology. (A.R. 2043).